Property Law Act Amendment Act 1973 (WA)

WESTERN AUSTRALIA.

PROPERTY LAW.

No. 35 of 1973.

AN ACT to amend the Property Law Act, 1969-1971.

[Assented to 18th October, 1973.]

BE it enacted by the Queen's Most ExcellentMajesty, by and with the advice and consent of the Legislative Council and the Legislative Assembly of Western Australia, in this present Parliament assembled, and by the authority of the same, as follows:—

1. (1) This Act may be cited as the Property short title and

Law Act Amendment Act, 1973. citation.

(2)	In this Act the Property Law Act, 1969-1971,	Act No. 32
of 1969 as

is referred to as the principal Act.

amended by Acts Nos. 12 of 1970, 19

of 1971. and

25 of 1971.

(3) The principal Act as amended by this Act

may be cited as the Property Law Act, 1969-1973.

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Amendment

to section 3.	2. The reference in section 3 of the principal
ment)

(Arrange- Act to PART VII is amended

(a)	by substituting "83E" for "83"; and
(b)	by adding at the end of the reference a passage as follows

Division 1.—General (ss. 69-83).

Division 2.—Options in Leases (ss. 83A-83E).

Amendment

to Part VII.	3. Part VII of the principal Act is amended
(Leases and

Tenancies.) (a) by adding immediately below the heading to the Part a sub-heading as follows:—

Division 1.—General. ;

(b)	by substituting for the word "The", in line one of section 69, the passage "Subject to subsection (1) of section 83B of this Act, the"; and
(c)	by adding at the end of the Part a Division as follows

Division 2.—Options in Leases.

Interpreta-

tion. 83A. In this Division

(a) a reference to an option con- tained in a lease is a reference to a right on the part of the lessee to require the lessor-

(i)   to sell, or offer to sell, to the lessee the reversion expectant on the lease; or

(ii)    to grant, or offer to grant, to the lessee a renewal or extension of the lease, or a further lease, of the demised premises or a part thereof,

whether the right is conferred by the lease or by an agreement collateral to the lease; and

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(b) a reference to a breach by a lessee of his obligations under a lease containing an option is a reference to a breach of those obligations by act or omission in so far as the act or omission would constitute a breach of those obligations if there were no option contained in the lease.

Construc-

83B. (1) In respect of leases of land

tion and

application

under the Transfer of Land Act, 1893,

of Division.

this Division shall be read and construed

subject to section 68 of that Act.

(2) This Division applies to and in respect of leases granted only after the coming into operation of the Property Law Act Amendment Act, 1973, and options contained therein.

(3) This Division has effect notwith-

standing any stipulation to the contrary.

83C. (1) In this Division "prescribed cBerretaaci nh of

obligations

notice" means a notice in writing that— not to pre-

clude lessee

fro

(a)	specifies an act or omission; and exercising	option
except

(b)	states that, subject to any order certain in	circum	-
of the Court under section 83D	stances.
of this Act, a lessor giving the notice proposes to treat that act or omission as having precluded a lessee on whom the notice is served from exercising an option contained in the lease.

(2) Where an act or omission that constituted a breach by a lessee of his obligations under a lease containing an option would, but for this section, have had the effect of precluding the lessee from exercising the option, the act or

No. 35.] Property Law. [1973.

omission shall be deemed not to have had that effect where the lessee purports to exercise the option unless, during the period of fourteen days next succeeding the purported exercise of the option, the lessor serves on the lessee prescribed notice of the act or omission and

(a)	an order for relief against the effect of the breach in relation to the purported exercise of the option is not sought from the Court before the expiration of the period of one month next succeeding service of the notice; or
(b)	where such relief is so sought-

(i)   the proceedings in which the relief is sought are disposed of, in so far as they relate to that relief, otherwise than by grant- ing relief; or

(ii)  where relief is granted upon terms to be com- plied with by the lessee before compliance by the lessor with the order granting relief, the lessee fails to comply with those terms within the time stipulated by the Court for the purpose.

Court may

grant relief	83D. (1) Relief referred to in section
from breach

of certain	83C of this Act may be sought
obligations.

(a)	in proceedings instituted in the Court for the purpose; or
(b)	in proceedings in the Court in which-

(i) the existence of an alleged breach by the lessee of his obligations under the lease; or

1973.1 Property Law. [No. 35.

(ii) the effect of the breach from which relief is sought,

is in issue.

(2) The Court may, in proceedings in which relief referred to in section 83C of this Act is sought

(a)	make such orders (including orders affecting an assignee of the reversion) as it thinks fit for the purpose of granting the relief sought; or
(b)

refuse to grant the relief sought. (3) The Court may, in proceedings referred to in subsection two of this section, take into consideration

(a)	the nature of the breach com- plained of;
(b)	the extent to which, at the date of the institution of the proceed- ings, the lessor was prejudiced by the breach;
(c)	the conduct of the lessor and the lessee, including conduct after the giving of the prescribed notice;
(d)	the rights of persons other than the lessor and the lessee;
(e)	the operation of section 83E of this Act; and
(f)	any other circumstances con- sidered by the Court to be relevant.

(4) The Court

(a) may make an order under sub- section (2) of this section on such terms as to costs, damages, compensation or penalty, or on such other terms, as the Court thinks fit; and

No. 35.] Property Law. [1973.

(b) may make any consequential or ancillary order it considers necessary to give effect to an order made under that subsec- tion.

Lease to

continue in	83E. (1) Subject to any order of the
force until

issue	Court and to this section
decided.

(a) where-

(i)

an option is contained in

a lease;

(ii)   the lessee exercises, or purports to exercise, the option; and

(iii)    the lease would, but for this paragraph, expire within the period of fourteen days after the exercise, or purported exercise, of the option,

the lease shall be deemed to continue in force until the expiration of that period;

(b) where

(i)  a prescribed notice is duly served on a lessee; and

(ii)  the lease in respect of which the notice is served would, but for this para- graph, expire within the period of one month referred to in paragraph (a) of subsection (2) of section 83C of this Act,

the lease shall be deemed to continue in force until the expiration of that period; and

(c) where, in relation to a lease continued in force under para- graph (b) of this subsection, relief referred to in section 83C

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of this Act is sought by a lessee, the lease shall, subject to sub- sections (2) and (3) of this section, be deemed to continue in force until

(i)  the proceedings in which the relief is sought are disposed of, in so far as they relate to that relief, otherwise than by grant- ing the relief; or

(ii)   effect is given to orders made by the Court in granting that relief in so far as they affect the lessor or relate to an assurance to the lessee.

(2) Paragraph (c) of subsection (1) of this section

(a)	does not apply to or in respect of a lease that, but for that paragraph, would continue in force for a period longer than the period for which it is, by the operation of that paragraph, continued in force; and
(b)	does not, where a lessee fails to comply with terms imposed upon him pursuant to para- graph (a) of subsection (4) of section 83D of this Act, operate to continue the lease in force beyond the time of that failure by the lessee.

(3) Where, under subsection (1) of this section, a lease continues in force after the day on which, but for that subsection, it would expire, the lease so continues in force subject to the provisions, stipulations, convenants, conditions and agreements in the lease

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(other than those relating to the term and the option contained in the lease) but without prejudice to any rights or remedies of the lessor or lessee in relation to the lease.

(4) Subject to subsection (5) of this section, where, pursuant to an option contained in a lease continued in force under subsection (1) of this section, the lease is renewed or a new lease is granted, the period during which the lease was so continued in force shall be deemed to be part of the term for which the lease was renewed or the new lease granted, and any lease granted pursuant to an exercise of the option shall be expressed to have commenced when the lease containing the option would, but for subsection (1) of this section, have expired.

Subsection (4) of this section does not apply to or in respect of a lease that stipulates for the commencement of any lease granted pursuant to an exercise of the option contained therein on a day that is later than the day on which the lease so granted would, but for this subsection, commence under subsection (4) of this section. .

(5)